This article was published in Nolte, Detlef, and Almut Schilling-Vacaflor (eds.). 2012. New Constitutionalism in Latin
America: Promises and Practices, 31-50. Farnham et al.: Ashgate. The page numbers indicate the original page.
Chapter 2
Explaining Constitutional Change:
Comparing the Logic, Advantages
and Shortcomings of Static and
Dynamic Approaches
Astrid Lorenz
There is a large and diverse body of empirical research on constitutional change and ‘new
constitutionalism’ in contemporary societies, yet a general theory of constitutional change is still lacking.
Researchers interested in democratic constitutionalism are confronted with various competing assumptions
and explanations regarding particular, often unrelated, cases. In order to facilitate cross-referencing and
conceptual consistency in the study of new constitutionalism in Latin America, this chapter provides an
overview of the main theoretical perspectives on constitutional change beyond the specific regional context
of Latin America, classifies the existing studies on constitutional change, and discusses their individual
advantages and shortcomings.
The chapter distinguishes between static and dynamic approaches according to their logic of
explanation (not according to issues of explanation), thus contributing to the current conceptual discussion
in comparative research on institutional change, and constitutions in particular. Static or constant-cause
approaches explain constitutional change using particular variables, or sets of variables, the causal effect of
which on constitutional continuity or change is always the same. X affects Y, therefore variations of X
result in variations of Y. Dynamic approaches explain constitutional change as an effect of variables, or sets
of variables, which may vary over the course of time. According to them, variations of X do not necessarily
result in variations of Y, depending on the broader context.
The chapter first describes the current status of research on constitutional change, its systems of
classification, and outlines a framework to evaluate the explanatory power of different approaches to
researching the topic. The second part provides a review and evaluation of static approaches. The third part
investigates dynamic approaches; and the fourth part, based on a comparison of the main features of the
approaches, specifies how each of them contributes to theory-building about constitutional developments in
Latin America and other regions of the world.
32
Classifying and Evaluating Studies on Constitutional Change
The term ‘new constitutionalism’ captures the fact that constitutions have spread all over the world,
enhanced judiciable civil, political, economic, social and cultural rights, and changed the relationship
between central states and regions, and between the state and its citizens. This trend has also increased the
importance of constitutional courts, ombudsmen and other institutions which supervise compliance with
norms in practice (Roesler 2007).
Accordingly, the research on constitutions has grown. Bibliographies and reviews of studies on
constitutionalism show that many empirical studies have analysed constitutional change in various ways
and with different goals in mind (Law 2010, Bufacchi 1995, CEPC 2003). Some of these studies focus on
the effects of particular institutions established by constitutions (Sartori 1994, Lane and Mæland 2000,
Congleton and Swedenborg 2006), while others describe their symbolic character and integrative function
(Vorländer 2002). Some analyses investigate how constitutional decisions are taken in the age of
globalization and transnational, international and supranational law (Wiener 2008, Weiler and Wind 2003,
Slaughter and Burke-White 2002), while others are more focused on how constitutions are created and
changed after revolutions or more general processes of political transformation (Elster, Offe and Preuss
1998). Comparative studies on constitutional change include comparative case studies (Weaver 2000,
Manfredi 1997, Kaiser 2002, Lorenz 2011), and analyses based on a large number of cases (Lutz 1994,
Negretto 2009, Roberts 2008, Lorenz 2005, Ferejohn 1997, Law and Versteeg 2011).
Despite these tremendous efforts to research constitutional change empirically, there is still neither a
satisfactory general theory on constitutional change nor a consistent terminology or typology of
constitutional change in political science or law (Grimm 1994: 316, Voßkuhle 2004: 458). Most of these
analyses are case studies, which attempt to explain a particular constitutional reform or its effects within a
given context. Studies of this type often focus much more on the empirical details of the case than on
overarching theoretical questions, failing to link systematically their findings to other case studies. Such
studies use various sets of explanatory variables that are operationalized in different ways, while ignoring
variables which are considered to be of great importance in other theoretical or empirical analyses of
constitutional change. As a result, many case studies produce a wealth of empirical data but are inefficient
when it comes to exploiting this wealth to enrich theory-building on constitutional change or comparative
empirical research.
Large-N comparative studies of constitutional amendments and replacements are significantly fewer
in number because they must rely on difficult to obtain homogeneous and valid data for a large number of
cases. These studies often test hypotheses which, though theoretically convincing, fail to explain
constitutional change empirically and are more or less inconsistent with the observations made by experts
on particular cases and countries. The absence of data on real events or
33
on the games that real actors play leads to an inefficient exploitation of advanced methodological
techniques, and to the creation of elegant but unrealistic theories (Green and Shapiro 1994). Therefore,
researchers who work with particular cases often hesitate to pursue this line of research.
In order to advance theory-building in the field of constitutional politics, it is necessary to promote
and facilitate communication and coordination among researchers regarding their theoretical assumptions
and foci of empirical research. This chapter therefore evaluates the logical structure of existing studies on
constitutional change. It classifies static and dynamic approaches, and notes the advantages and
shortcomings of each one. This classification departs from previous comparative analyses of studies on
institutional change, of which studies on constitutions are a sub-species. Studies on institutional change are
mainly divided into rational choice, historical and sociological approaches (Hall and Taylor 1996,
Immergut 1998). This classification was based on the different understandings of what institutions are and
the sources of change in each approach. As a result of fruitful academic debate, these approaches were
reflected upon more consciously, so that points of tangency between them have grown and much crossborrowing of ideas and methods has taken place (Thelen 1999: 371, Scharpf 1997: 29ff.). All studies on
institutions, for example, rely on rational actors. Therefore the classification has become somewhat vague.
Today, the differences between static and dynamic models to explain institutional change 1 are more
striking because these approaches often use the same variables (culture, ideology or rational choice, among
others) in different ways and contexts, which results in contradictory predictions and explanations. Some
rational choice theorists, for example, derive their assumptions on institutional change from models of ‘oneshot games’ with a small set of descriptive variables which are meant to explain the outcome. This is a kind
of static modelling. Dynamic models consider the broader context and acknowledge the influence of time,
or of recurring interactions, on the effect of these variables. This difference is explained in more detail in
the following sections.
The classification of static and dynamic approaches brings together studies on constitutional change
with discussions in other policy fields that have focused increasingly on processes, time and sequences
(Cohen et al. 1972, Kingdon 1995, Pierson 2000, Rueschemeyer and Stephens 1997, Thelen 2003). This
chapter also uses universal criteria to evaluate the structure of the approaches used to explain constitutional
change (De Vaus 2001), specifying which concept of constitutional change they adopt, their logic, the
elements and level of complexity (number of variables and links) of explanation, the scope of cases which
the approach attempts to explain, the level of abstraction, and the testability of the approaches for more
1
Thelen proposes a quite similar classification of ‘constant-cause explanations’ and ‘path-dependency explanations’
(Thelen 2003: 214ff.): However, since dynamic models of explanation do not always focus on path dependency (see
below), this chapter uses the term ‘dynamic approaches’.
34
than one case. These criteria relate to the general structure of the approaches. Methodological questions are
left out because any theory and research design may be combined with any method of data collection, with
qualitative or quantitative research methods (De Vaus 2001), which are therefore not specific to particular
approaches. The results of the systematic evaluation of the approaches can be used to identify the
advantages and shortcomings of each, as well as to provide recommendations regarding their suitability for
specific research questions and the appropriateness of the combined application of these approaches.
Static Approaches: Clear, Universal, Limited Variables
Static approaches operationalize constitutional change as the formal adoption of a constitution or
constitutional amendment. This political decision is explained using variables or sets of variables which
consistently cause the same effects. These approaches, although generally open to testing many variables,
often focus on one or a small number of relatively abstract possible causes, such as culture, constitutional
rigidity or federalism. The explanatory models developed are quite clear and simple. This allows for
comparisons of many cases and increases the probability that the models may be universally valid, that is,
able to explain many, if not all, cases.
On closer examination, static approaches often focus on either the genuine structural causes of
change or on the processing of these causes by political actors, which is restricted by existing institutional
norms. The first group of studies starts from the premise that constitutions are based on, and reflect,
particular ideas. They are seen, for example, as institutional solutions to ensure political efficiency, as
resulting from power relations, or as reflecting cultural norms. Accordingly, shifts in the underlying
conditions must result in changes to the constitution, which would otherwise risk being abandoned and
substituted by another (Elkins, Ginsburg and Melton 2009, Negretto in this volume). These explanatory
models are based on the implicit or explicit assumption that constitutions are in equilibrium with the
‘founding’ variables. Changing the constitution is a way to preserve or to re-establish equilibrium with the
underlying variables (Thelen 2003: 212).
At the same time, many scholars (and politicians) believe that democracy can be ‘designed at the
drawing board’ by wise political actors (Sartori 1994) or exported from established democracies to
authoritarian states. Democratization studies conceptualize constitutional change as an important
prerequisite for reforming political systems as a whole. Democratization must include the introduction of
democratic constitutionalism in order to guarantee fundamental rights, free elections, the separation of
powers, and the rule of law (Elkins 2010: 973). Constitutional changes in Latin America are therefore often
assessed positively.
Another variable that is assumed to be important when explaining constitutional politics and change
is the federal or unitary character of a country. Federal constitutions are introduced in heterogeneous
countries in order to satisfy
35
the interests of various social groups. They institutionalize a higher degree of institutional complexity. Even
incremental context changes at the federal or state level often result in complex shifts and changes in other
policy domains or at another level. The representatives of the various territorial authorities, and elected
politicians at the federal level, all have significant influence and have formal means to defend their interests
(Behnke and Benz 2009, Riker 1964, Bednar 2005, Livingston 1956). Federal systems are thus constantly
facing incentives or pressure to change the constitutional order, so constitutional amendments are more
likely to occur. Non-federal systems are less complex, and potentially diverging national or regional
interests are not institutionalized. Accordingly, established unitary democracies face considerably fewer
incentives and less pressure to change their constitution. This example demonstrates that static approaches
to explain constitutional change may well recognize certain dynamics in theorizing about the interrelations
between the variables, but their overall effect is formally modelled as constant.
Constitutional culture or tradition is also often considered to have a significant and quite constant
influence on constitutional change. It has been noted that different constitutions have resulted from the
differences between the concepts underlying US constitutionalism, Anglo-Saxon rule of law, the German
Rechtsstaat and the French état de droit over ‘how much’ rule of law a democracy needs and over the
nature of sovereignty (Rosenfeld 2001, Offe and Preuss 1991). Constitutions preserve these differences and
have a strong impact on political decisions and on the national identity of the constitutional community
(Ackerman 1989: 477, Law and Versteeg 2011). Constitutional change may serve to protect the community
against new norms imposed by external forces or to preserve the compatibility between the polity and the
constitutional culture when facing moderate shifts in the interpretation of the constitution and its principles
(cf. Smith 2003, Vorländer 2002, Gebhardt 1999, Brodocz 2003).
As stated previously, another group of studies which uses a static approach focuses more on the
factors determining how actors process incentives and pressures to change the constitution. These studies
do not necessarily follow the logic of equilibrium solutions, but rather suggest that institutional provisions
for amending a constitution determine how the various incentives for change are translated into
constitutional amendments or replacements. It is one of the fundamental provisions of all constitutions that
all modifications and amendments must be approved by a political majority. Many researchers assume that
high procedural obstacles to constitutional change cause lower constitutional amendment rates,
irrespectively of the particular incentives to change the constitution emanating from its environment
(among others, Acosta Romero 1993: 13, Lutz 1994, Ferejohn 1997: 523, Maddex 1996: 13, Manfredi
1997: 132, Weaver 2000, Spiliotopoulos 1995; Venizelos 1999). Indeed, in a one-time interaction, the
larger the number of actors involved in the decision-making process, the higher the cost of consensusbuilding, the higher the value of the forgone benefit of not undertaking certain other activities in that time,
and the higher the risk that single political actors will veto a proposal.
36
The quality and length of the constitution are two other, more or less static, characteristics believed to
have an influence on the probability of constitutional change. High quality constitutions are hypothesized to
change less frequently, while constitutions which have certain shortcomings are believed to be changed
more often (Sartori 1994). Extensive constitutions are theorized to be changed more often because they
contain more provisions which may not stand the test of time, or may no longer be compatible with the
interests of actors; by contrast, less extensive constitutions are considered to be more flexible and open to
implicit (informal) change by interpretation which makes formal change unnecessary (Lutz 1994, Elkins,
Ginsburg and Melton 2009). Here, the quality of an established constitution and its length are factors which
constantly influence the processing of incentives and pressure for change.
The effect of the particular circumstances in which a constitutional amendment is proposed on the
processing of the amendment proposal is another constant cause for constitutional change. Such variables
include the partisan veto structure, the discrepancy or congruence between the veto players’ preferences,
and the scope of reform of the amendment proposal. Rationalist and institutionalist studies explain
constitutional change on the basis of the configuration of veto players who benefit from a specific
institutional configuration (Elster 1993, Holmes 1993: 196 ff, Sejersted 1993: 135, Bogdanor 1988: 4, Lane
and Mæland 2000, Congleton 2006, Congleton and Swedenborg 2006, Laffin 2000). These studies suggest
that actors generally adopt only such constitutional changes that promise a benefit for them, and that they
prefer incremental modifications over extensive reform because the effects of the former are easier to
predict (Voigt 1999, Sejersted 1993: 135, North 1990).
The age of a constitution is another variable that is quite often used to explain constitutional
amendments or replacements. It has been assumed that the older a constitution is, the more likely it is that it
will be changed as a result of context changes (Roberts 2008, among many others). However, the
mechanism behind the assumed correlation is not clear. What exactly causes constitutional change? The age
of the constitution may be a dummy for various factors of change, including a change of ideas, integration
into supranational organizations, and shifts in the distribution of power, among others.
Because the set of variables is limited and the number of cases (observations) is high, there is the risk
of misinterpretation. It is often argued, for example, that constitutional changes are an effect of
democratization (Roberts 2008, for example). Indeed, this seems plausible at the first glance. However, the
variable democratization is often operationalized and measured by using the rankings of Freedom House,
the European Union (EU) or some other institution. These base their evaluation on the presence of formal
institutional reform towards greater freedom or free elections, which become manifest in constitutional
changes, inter alia. This means that the explanatory variable – democratization – already contains the aspect
of institutional change, such that the explanation of institutional change becomes circular. Both the
independent and the dependent variable measure the same thing.
37
Further, some Latin American cases indicate that the importance of constitutional change for
democratization may be overestimated. Bolivia and Argentina maintained a constitution in 1982 and 1983
that was enacted (Bolivia 1967) or modified (Argentina 1972) during an authoritarian period; in Chile the
1980 constitution of the Pinochet dictatorship was simply amended in 1989. According to Elkins, Ginsburg
and Melton (2009), roughly 19 and 27 per cent of transitions to democracy and authoritarianism,
respectively, coincide with constitutional change, and authoritarian states often introduce constitutions with
democratic elements for ‘window dressing’ purposes (see also Elkins 2010: 973f.).
All in all, static approaches are very useful when explaining patterns of constitutional change across
different political systems and constitutional principles. Other great advantages are that they are testable for
many cases and helpful in determining the hierarchy of importance of different possible causal factors.
Some empirical analyses have found strong evidence for their hypotheses. For example, it was shown that
in established democracies the higher the degree of political fragmentation, the higher the constitutional
amendment rate. Within these democracies, low constitutional rigidity is a necessary but insufficient
condition for constitutional amendments (Lorenz 2010).
However, this approach has its limitations. Constant-cause models do not adequately explain why the
willingness to cooperate in constitutional politics often changes over time without any modification of the
variables responsible for the genesis of the constitution. Nor can they explain the emergence of varying
constitutional preferences within a system or a situation. If, say, a particular constitutional culture has
significant effects on constitutional development, then why do actors who are influenced by this culture
develop diverging constitutional preferences? Further, such approaches do not sufficiently explain why
some institutions remain stable despite context changes, while others implicitly change (cf. Thelen 2003:
210).
The empirical evidence for the explanatory power of some of the above variables for constitutional
change varies considerably. In general, constitutional amendments and replacements take place much more
frequently than conventional constant-cause models suggest. Irrespective of this general trend, cycles of
constitutional activism can be observed in many systems, which may not be explained by shifts in the
abovementioned explanatory variables. The federal or unitary character of a system, for example, often
remains stable while the system experiences phases of constitutional continuity and change. Some recent
empirical studies suggest that the effect of institutional obstacles to constitutional amendments, such as
required majorities and referenda, has, in fact, been overestimated (Rasch and Congleton 2006, Roberts
2008).
In some cases, the explanation offered is insufficient to account for the entire sample under study.
The pattern of constitutional change in federal democracies, for instance, is divided. Most such democracies
change their constitutions frequently, while others rarely adopt regular laws to promote explicit
constitutional change (the US, Australia and Canada). The evaluation of the investigated sample also
38
shows that the relationship between rigidity and constitutional change is much more evident in Latin
America (Negretto 2009) than in the longer established democracies (Lorenz 2010). Obviously, with partial
explanations such as these, we face the well-known methodological problems of having a small number of
cases with their own characteristics, and of the uneven distribution of cases.
Because of the lack of adequate operationalizations and comparable data such as the effect of culture,
some hypotheses have not been tested systematically for many cases, although important steps have taken
in this direction (for example, by Elkins, Ginsburg and Melton 2009). Given this, the great advantage of
static approaches – the possibility of testing hypotheses for many cases and of developing universal
explanations – cannot be fully exploited in practice. It is not yet clear whether this is due to the current
status of empirical research or because the logic of their theoretical foundations is not adequate to explain
real-world developments.
Dynamic Approaches: Multi-Causal, Complex, Detailed
Like static approaches, dynamic studies conceive of constitutional change as the adoption of a constitution
or constitutional amendment. In order to explain it, they take into account different variables at detailed
stages of development, such as informal agreements during negotiations, and a change of norms without
modifications to the text. This is because they assume that variables do not necessarily have the same effect
on constitutional continuity or change at every point in time, and that formal stages of development (such as
the adoption of a constitutional amendment) are not the end of the story. Regarding Latin America, for
example, it has been noted that introducing or reforming democratic constitutions does not guarantee
political change if other context variables are not sufficiently benevolent. Often, constitutional changes
even are not intended to ensure the long-term effect of norms but to mobilize short-term public support in a
given political situation (cf. Cifuentes 2007; Garzón Valdés 2000).
Obviously, factors that were responsible for the genesis of an institution may be different from those
sustaining it over time, which neutralize that institution’s effects in practice and generate pressure or
incentives to change it (cf. Thelen 2003: 218). Because of the complex nature of interaction effects, timing
and sequencing are important. Detailed process-tracing analyses are therefore useful to identify how
configurations of variables affect constitutional development.
While dynamic approaches generally focus on variables similar to those used by static approaches,
because they adopt a broader subject of investigation and diverging logic of explanation, they are can use
many different variables as potential determinants of constitutional change. Typical elements include the
relations and interaction between particular actors within a given institutional context. Actors must be
aware of the reasons for change, develop institutional alternatives, and negotiate these alternatives before
change can take place (Braun
39
2009, Weaver 2000, Kaiser 2002, Schultze 2000, Bogdanor 1988, Elster and Slagstad 1993, Banting and
Simeon 1985). Other explanatory variables include (sequences of) previous political choices and
contingencies, longer historical processes, and varying political and social contexts. The variables are not
seen as being independent from each other and are operationalized in various ways, from a relatively low2
to a high level of abstraction. Their varying configurations are understood as descriptions of specific
episodes, or as turning points within longer processes. The inclusion of the different possible variants of
various factors covering longer periods of time results in detailed and complex models.
The important added advantage of process-tracing studies is that they examine the dynamics of actors
or social structures and their interaction with formal constitutional rules, such as political struggle,
compromise, and the diffusion of ideas. Process-tracing studies can explain shifts in actors’ willingness to
change the constitution in an unchanged context, the varying amplitude or frequency of constitutional
change within a system, and the timing of reform. But before discussing the advantages and shortcomings
of static and dynamic approaches, let us illustrate this point by considering a few examples of different
types of process-tracing studies.
Historical sociological approaches base their explanations on the analysis of extended periods of
time, pointing out the impact of political struggles and crises (Banting and Simeon 1985, Levinson 1995b,
Loewenstein 1961), and acknowledging the possibility that factors which were not important during the
making of a constitution may become important for constitutional change. Changes in a constitution may
become necessary if provisions that were considered appropriate at the time the constitution was adopted
have become inadequate because the social, economic and political context has changed (Loewenstein
1961: 21, Bogdanor 1988: 381). Here, changes in the broader context stimulate particular changes in actors’
preferences and lead to institutional change. Crises, domestic change, and changes in the international
context such as supranationalization and other phenomena, interact and may together open windows of
opportunity for constitutional change. Studies on European constitutionalism, for example, have shown
how actors are influenced by past national norms but may develop new perceptions and supranational
norms (Wagner 1999). Thus, variables are not seen as universally causing certain effects.
Some studies point out that constitutions are shaped by struggles between classes and other
macrostructures, but that constitutional change is mainly the result of the interplay between political elites
competing for resources. In Germany, after the adoption of the constitution in 1949, distinct modes of
interaction emerged among parties and Länder governments, which allowed a trade-off between party
2
The level of abstraction is considered to be low if, for example, a study distinguishes between nominal parties rather
than classifying them according to whether they belong to the government or the opposition, or according to their
ideological position, party family, electoral success, blackmailing power, or other criteria.
40
competition, on the one hand, and joint policy-making, on the other. These actors frequently adopted
constitutional amendments concerning the redistribution of responsibilities and finances between the
federal level and the Länder. The direction of change was always influenced by the particular power
relations in place among the actors involved. In the 1990s, for example, diverging partisan majorities in the
chambers of parliament made it more difficult for the Christian Democrats, then the ruling government
party at the federal level, to achieve their policy goals. Christian Democratic leaders of Länder governments
then initiated a public debate on what they called ‘good federalism’, which would make federalism more
competitive and give the federal and sub-national levels more decision-making autonomy. This resulted in a
slight shift in the public perception of federalism, and when the Social Democrats, in their role as the ruling
government party, later faced decision-making problems caused by diverging majorities similar to those
experienced by the Christian Democrats earlier, they, too, changed their minds. This opened the way for
negotiations of a reform of federalism in Germany which – after complicated interactions which cannot be
discussed here in detail – eventually led to more competitive federalism (Scharpf 2009).
Dynamic models, however, may also focus on a smaller set of variables, such as the interaction
between decision-making costs and the rigidity of amendment procedures. It has been argued that, given a
constant constitutional rigidity, each constitutional amendment adopted within a specific period of time
lowers the de facto threshold for subsequent amendments because it decreases the associated decisionmaking cost. The reason for this effect is that an infrastructure of negotiation emerges, which can be used
for other negotiations later. Actors also tend to have more trust in each other’s willingness to cooperate
because the stable overall institutional framework allows them to anticipate future interactions without
fearing instability as a possible negative externality of constitutional change. All else being equal, the more
stable the overall institutional framework and the shorter the period of time since the last constitutional
amendment, the higher the probability that a constitutional amendment under negotiation will be adopted.
Over time, this scale effect diminishes the impact of institutional restrictions to change, favouring a slight
overall increase in the number of constitutional amendments – but only to a certain point – while
constitutional rigidity remains the same (Lorenz and Seemann 2009). This model of explanation is dynamic
because the individual variables do not cause constant or linear effects, it is their interaction which disturbs
such causal relationship and results in non-constant and non-linear effects.
Other empirical analyses of constitutional politics emphasize the role of negotiation dynamics in
explaining constitutional change (Braun 2009, Schultze 2000, Schönlau 2003, Elster 1993, Elster et al.
1998), including sequences of varying interaction orientations (cf. Scharpf 2003: 10ff). During the first
negotiation phase, proposals for even minor alterations of the constitution cause major conflicts and actors
are only willing to cooperate on issues which further their own interests. If the agenda-setter is still able to
step into negotiations at this point, the
41
players are more inclined to compromise and to argue (instead of bargaining) in the second phase. Often,
constitutional provisions are agreed upon, even if they require considerable changes to the powers and
routines of the participants and thus are very costly (Joerges and Neyer 1997; Scharpf 1988, 2003, and
Closa 2004). This leads to an asymmetry of possible benefits which puts the agenda-setter at an advantage.
During the competitive last stage of negotiations, actors agree to cooperate if they expect gains from the
amendment or from side benefits; if the adoption is compatible with tactics in political competition; and if
the agenda-setter is willing to make necessary modifications or to accept demands symbolically. So the
conditions for compromise vary over time despite a stable overall context.
Inter-venue effects during negotiations and the emergence of a path of negotiation also have an
influence on constitutional change, in that they reduce the number of perceived options for constitutional
change. For example, small gains are more readily accepted during the final stage of negotiations than
during the first negotiation phase because the actors evaluate these gains in relative rather than in absolute
terms, comparing the gains with those of others who negotiated previously with the agenda-setter. Risk
aversion is also lower in this phase than in the first stage. Both phenomena are obviously influenced by the
fact that the actors want what is often a protracted negotiation process to result in a decision rather than a
non-decision. When a constitutional amendment is finally adopted, the distribution of gains that follows is
shaped substantially by the first proposal of the agenda-setter and by a number of agreements made during
the competitive stage of negotiations; while compromises reached during the cooperative stage of
negotiations usually focus on operational and legal issues of implementation, not on alternative ways to
reach the political aims or on the suitability of these political aims as such (Lorenz 2011, Weaver 2000).
Dynamic approaches are well-suited to explain how decisions on constitutional change and the
details of these decisions are influenced by fluid configurations of variables; and how and why interaction
effects between variables may eliminate the effect of single structural determinants such as culture,
federalism and constitutional rules. Dynamic approaches make it easier to explain why constitutional
development does not always follow the predicted course or why, contrary to what constant-cause
approaches suggest, constitutions are immune to certain incentives or pressures to change.
However, the main advantage of dynamic approaches – their complexity – is also a major obstacle
when trying to formulate a consistent general theory of constitutional change. In general, the more
variables, levels of analysis, and interplays between variables over the course of time are included in the
explanatory model, the more difficult it becomes to really understand all the interactions among the
variables, to avoid the problem of collinearity (some independent variables are approximate or linear
combinations of some other variables), and to ensure that the general model makes sense. Even if the
independent variables are logically independent from each other, often more than two variables co-vary,
which makes it impossible to determine and confirm the hierarchy of the causal factors. And
42
even where specific combinations of causes for constitutional change can be isolated for specific cases,
such combinations may be so particular that they cannot be tested for many cases and so the assumptions
regarding causal relationships cannot be considered universally valid.
Sometimes even complex analyses culminate in ‘thin’ diagnoses of the main cause of constitutional
change. This is especially true for the many case studies which identify certain actors as having caused a
constitutional amendment or constitutional replacement. Charles de Gaulle, for example, was considered to
have ‘caused’ the introduction of the French Fifth Republic in 1958, which gave him and the government
more power (Carcassone 1988). At first glance, this is a historical fact, but it is not a causal explanation
which can be applied to other cases or be falsified. Even if we focus the explanation on de Gaulle’s
intention to maximize power, this is not a valid explanation because many actors strive to maximize their
power and do not succeed in introducing (indeed, may not even want to introduce) a constitution
comparable to that of the Fifth Republic. So explanations which rely on certain persons are precise only at
first glance.
As with static approaches, the assumed effect of other key variables is often plausible but too
unspecific to be empirically testable (cf. Grimm 1994: 316). Political instability and crisis, which are often
believed to cause constitutional change, are vague concepts. What we mean by political instability or crisis
depends on subjective evaluations, unless we can define them in precise terms. Therefore, their possible
effect on constitutional change can only be measured for more than one case if they are clearly defined and
operationalized. But how to determine the type or level of political instability or crisis that inevitably leads
either to constitutional change or has no impact whatsoever on a constitution?
It is interesting to note that, unlike static approaches, process-tracing studies generally do not intend
to provide comprehensive, universal explanations. A greater willingness to contribute to theory-building
would no doubt lead to more joint efforts to resolve the abovementioned problems.
Recommendations for Use in Comparative Perspective
Which of the two approaches described in this chapter is best suited to explain constitutional change?
Before we summarize their respective advantages and shortcomings, it is important to emphasize that the
dynamic or static character of the approaches does not, in itself, imply any specific prediction as to the
frequency of constitutional amendment or replacement. Static models may well predict many reforms if the
key variables are assumed to stimulate change, while dynamic approaches may predict constitutional
continuity if the key variables are assumed to cause path dependency and stalemate. Some authors have
argued, for example, that even unfavourable institutional configurations may produce increasing returns and
therefore remain stable (cf. Pierson 2000, Thelen 1999: 384 ff.). As already mentioned, both approaches
also base their explanations on similar variables.
43
Table 2.1
Explanatory features of static and process tracing approaches
Static approaches
Dynamic approaches
Subject
Formal adoption of a constitution or
constitutional amendment
Various types of change, including
implicit change of the constitution
Logic
First assumption: Constitutions are the
result of specific variables. If the
variables change, then the constitution
also changes.
Second assumption: All constitutional
change must pass through an
institutional, actor-related bottleneck.
Third assumption: Variables that lead to
the genesis of a constitution may be
different from those which determine its
subsequent development.
Fourth assumption: The variables must
not necessarily have the same effect at
every point in time.
Elements
Federal/unitary system, culture,
constitutional rules and power
relations, among others.
See under static approaches, plus
contingencies, interactions and
embeddedness.
Level of
abstraction
Medium-to-high
Low-to-high
Complexity
Low-to-medium
Low-to-high
Universality
Medium-to-high
Valid for particular cases or mid-range
Testability
Good
Limited
Useful for
explaining
Long-term patterns of change across
different political systems and
different constitutional norms;
hierarchy of causal factors
Change that contradicts the previous
influence of variables; varying
willingness to implement change and
frequency of change in unchanged
contexts; the timing of reform
Not useful for
explaining
Temporal variation within political
systems; the timing of change; implicit
change; change without changes in the
‘founding variables’
Hierarchy of the causal factors; many
cases (if the model is moderately or
highly complex)
The difference between the two approaches used to explain constitutional change consists in their
logic of explanation rather than in the expectation of change or continuity and the explanatory variables.
Table 2.1 summarizes the observations detailed in this chapter regarding the main explanatory features. The
first assumption, adopted by static approaches, is that constitutions are results of particular variables. If
these variables change, then the constitution also changes. The second assumption describes this
relationship more precisely by adding
44
that all constitutional change must pass through an institutional, actor-related bottleneck. Both these
assumptions are widely accepted in political research on democratic constitutionalism. The third basic
assumption used in dynamic approaches is in conflict with the first assumption in that it asserts that
variables which lead to the genesis of a constitution may be different from those which determine its
subsequent development. However, the possibility expressed in this may be implies that the first assumption
might also be true. The same holds for the fourth assumption, which states that all variables do not
necessarily have the same effect at every point in time. The latter assumption may not contradict the first
and third assumptions, but it significantly reduces their ability to explain constitutional change, thus
broadening the focus of explanation to include a larger array of possible explanatory variables in various
possible explanatory configurations.
The first and second assumptions may also result in complex explanatory models (although actually
they are often less complex), but dynamic approaches allow for more elements to be taken into account,
including contingencies, interaction effects of variables, and varying configurations of variables over time.
The level of abstraction of both approaches is medium to high, but in practice there are many applications
of a dynamic approach with a low level of abstraction. While hypotheses derived from static approaches
generally can be tested easily because of the lower level of complexity involved, the findings from dynamic
studies can only be tested to a certain degree. However, unlike static approaches, dynamic studies usually
do not intend to provide universal explanatory models anyway.
This comparison of the explanatory features of static and process tracing approaches suggests that
each provides valuable insights into the relationships between actors, institutions and the broader context,
and their effects on constitutional change and continuity. Static approaches are particularly well-suited to
identify long-term patterns of constitutional amendment and replacement across different political systems
and different constitutional norms; and are better able to determine the hierarchy of causal factors.
Ironically, however, political science has thus far failed to exploit this key advantage and establish a general
explanation for constitutional change that can be verified empirically for a high number of cases.
However, this theoretical gap can be filled by using more detailed approaches that include timerelated variables, which makes them well-suited to explain how decisions about constitutional change, and
the details of these decisions, are influenced by dynamics of interaction between the variables; and how and
why these interactions and contingencies influence the effect of culture, constitutional rules or federalism,
as hypothesized by static approaches. Dynamic approaches can explain a varying willingness to implement
change and the frequency of change in unchanged contexts as well as the timing of reforms. However, the
additional insights provided by these approaches, while satisfying the demand for greater in-depth
knowledge and complex explanations, may not be testable for other cases if they are very specific; and they
may fail to identify the hierarchy of influence of the selected variables.
45
The above comparison allows us to make some recommendations regarding the use of these
approaches. Studies on constitutional stability and change should be designed with due consideration for
the above described advantages and shortcomings, and for the results of other studies. Ideally, such studies
should always prove whether the approaches really arrive at diverging explanations of a given empirical
phenomenon. If the explanations or predictions differ only slightly or establish different foci, it is
reasonable to use a static approach because it is less demanding with regard to data collecting and
processing and has strong methodological advantages. However, if they are in conflict, then it should be
investigated in depth and for more cases which one of the alternative explanations is more suitable.
Notwithstanding this general recommendation, each approach is particularly useful for certain
research questions. Dynamic approaches are the most appropriate when explaining the varying willingness
to implement change, and the frequency of change within systems and unchanged contexts; and the
underlying political mechanisms of constitutional change and continuity. Static approaches do not work in
such cases. They are more appropriate when the main research interest is to identify general patterns of
constitutional change across political systems with different constitutional norms, and to determine a causal
hierarchy of determinants. Provided they are employed in such a way as to complement and challenge each
other, both approaches combined have the potential to contribute to theory-building.
Concluding Summary
Inspired by the apparent absence of a general theory of constitutional change, this chapter has compared the
structure, advantages and shortcomings of existing studies beyond Latin America, and assessed their
contribution to theory-building. To this end, existing studies were classified as static or dynamic in
approach, because assuming a constant or dynamic effect of certain independent variables may result in
competing predictions and is therefore the most obvious distinctive feature of the existing studies on
constitutional change.
It was shown that static approaches often base their explanatory models on a limited set of variables,
formulate clear hypotheses, and attempt to develop universally valid explanations; by contrast, dynamic
approaches propose multi-causal, detailed, complex models to explain constitutional change. While both
approaches use structural and institutional variables to explain formal constitutional change or stability,
dynamic approaches tend to operationalize constitutional change on a broader scale by highlighting
interrelations between actors, contingencies and interactions of variables. They tend to use a lower level of
abstraction and, in contrast to static approaches, are intended to develop mid-range theories rather than
universal ones. The testability of static models of explanation is better.
46
What does this mean for those interested in studying new constitutionalism in Latin America? Based
on the comparison, it is recommended that one should always consider whether static or dynamic
approaches would result in competing explanations for a given empirical phenomenon, or in competing
predictions concerning the results of given sets of variables. If they do compete, the appropriateness of the
alternative explanations should be investigated in depth. In general, the use of a static approach has
methodological advantages when it comes to identifying general patterns of constitutional change across
political systems, and different constitutional norms and a causal hierarchy of determinants. If, for example,
strong constitutional improvements of minority rights and the introduction of direct democracy do not go
hand in hand with changes in practice, then such approaches could demonstrate that an authoritarian
environment hampers compliance with constitutional rights. But they cannot explain why rights provisions
were improved if that authoritarian environment remained constant. The use of dynamic approaches is
recommended where the aim of research is to explain this varying willingness to implement constitutional
change, and the frequency of change in unchanged contexts. They are also suitable to explain the
underlying political mechanisms of constitutional change and continuity. There is considerable potential for
complementarity between both approaches to contribute to theory-building, so they may be combined.
References
Acosta Romero, M. 1993. Las mutaciones de los Estados en la última década del siglo XX: Necesidad de
nuevas constituciones o actualizaciones y reformas de las vigentes. México: Porrúa.
Banting, K.G., and Simeon, R. 1985. Introduction: The politics of constitutional change, in Redesigning the
State: The Politics of Constitutional Change, edited by K.G. Banting and R. Simeon. Toronto:
University of Toronto Press, 1–29.
Bednar, J. 2005. Federalism as a public good. Constitutional Political Economy, 16, 189–205.
Behnke, N. And Benz, A. 2009. The politics of constitutional change: Between reform and evolution.
Publius, 39, 213–240.
Bogdanor, V. (ed.) 1988. Constitutions in Democratic Politics. Aldershot: Gower.
Braun, D. 2009. Constitutional change in Switzerland. Publius, 39, 1–27.
Brodocz, A. 2003. Die symbolische Dimension der Verfassung. Wiesbaden: Westdeutscher Verlag.
Bufacchi, V. 1995. The study of constitutionalism: A bibliographical note, in Democracy and
Constitutional Culture in the Union of Europe, edited by R. Bellamy, V. Bufacchi and D. Castiglione.
London: Lothian Foundation Press, 197–222.
47
Carcassone, G. 1988. France (1958): The Fifth Republic after thirty years, in Constitutions in Democratic
Politics, edited by V. Bogdanor. Aldershot: Gower, 241–256.
CEPC [Ministerio de la Presidencia, Centro de Estudios Políticos y Constitucionales] (ed.) 2003.
Bibliografía sobre la reforma constitucional en los países de la Unión Europea. Boletín de
documentación, 17–18, May–December.
Cifuentes, E. 2007. Reformas constitucionales e institucionalidad en América Latina, available at
http://www.voltairenet.org/article149540.html [accessed 22 August 2011].
Closa, C. 2004. The Convention method and the transformation of EU constitutional politics, in Developing
a Constitution for Europe, edited by E.O. Eriksen, J.E. Fossum, and A.J. Menéndez. London and New
York, NY: Routledge, 183–206.
Cohen, M. March, J. and Olsen, J.P. 1972. A garbage can model of organizational choice. Administrative
Science Quarterly, 17, 1–25.
Congleton, R.D. 2006. Constitutional exchange in Japan: From Shogunate to parliamentary democracy.
Public Choice Studies, 47, 5–29.
Congleton, R.D. and Swedenborg, B. (eds) 2006. Democratic Constitutional Design and Public Policy:
Analysis and Evidence. London and Cambridge, MA: MIT Press.
de Vaus, D. 2001. Research Design in Social Research. London: SAGE.
Elkins, Z. 2010. Diffusion and the constitutionalization of Europe. Comparative Political Studies, 43(8–9),
969–999.
Elkins, Z. Ginsburg, T. and Melton, J. (2009). The Endurance of National Constitutions. New York, NY:
Cambridge University Press.
Elster, J. 1993. Constitution-making in Eastern Europe: Rebuilding the boat in the open sea, in
Administrative Transformation in Central and Eastern Europe: Towards Public Sector Reform in PostCommunist Societies, edited by J.J. Hesse. Oxford and Cambridge: Blackwell, 169–217.
Elster, J. Offe, C. and Preuss, U.K. 1998. Institutional Design in Post-Communist Societies: Rebuilding the
Ship at Sea. Cambridge: Cambridge University Press.
Elster, J. and Slagstad, R. (eds) 1993. Constitutionalism and Democracy. Cambridge: Cambridge
University Press and Universitetsforlaget.
Ferejohn, J. 1997. The politics of imperfection: The amendment of constitutions. Law and Social Inquiry,
22, 501–531.
Garzón Valdés, E. 2000. Constitución y democracia en América Latina, in Anuário de Derecho
Constitucional Latinoamericano. Buenos Aires: CIEDLA, 55–80.
Gebhardt, J. (ed.) 1999. Verfassung und politische Kultur. Baden-Baden: Nomos.
Green, D. and Shapiro, I. 1994. The Pathologies of Rational Choice. New Haven, CT: Yale University
Press.
Grimm, D. 1994. Die Zukunft der Verfassung. Frankfurt am Main: Suhrkamp.
Hall, P.A. and Taylor, R.C.R. 1996. Political science and the three new institutionalisms. Political Studies,
44, 936–957.
48
Holmes, S. 1993. Precommitment and the paradox of democracy, in Constitutionalism and Democracy,
edited by J. Elster and R. Slagstad. Cambridge: Cambridge University Press and Universitetsforlaget,
195–240.
Immergut, E.M. 1998. The theoretical core of the new institutionalism. Political Sociology, 26, 5–34.
Joerges, C. and Neyer, J. 1997. Transforming strategic interaction into deliberative problem solving:
European comitology in the foodstuffs sectors. Journal of European Public Policy, 4, 609–625.
Kaiser, A. 2002. Mehrheitsdemokratie und Institutionenreform. Verfassungspolitischer Wandel in
Australien, Großbritannien, Kanada und Neuseeland im Vergleich. Frankfurt am Main and New York,
NY: Campus.
Kingdon, J.W. 1995. Agendas, Alternatives and Public Policies. New York, NY: Harper Collins.
Laffin, M. 2000. Constitutional design: A framework for analysis. Parliamentary Affairs, 53, 532–541.
Lane, J.-E. and Mæland, R. 2000. Constitutional analysis: The power index approach. European Journal of
Political Research, 37, 31–56.
Law, D.S. 2010. Constitutions, in The Oxford Handbook of Empirical Legal Research, edited by P. Cane
and H. Kritzer. Oxford: Oxford University Press, 376–399, Washington University School of Law
Working Paper 10-02-05.
Law, D.S. and Versteeg, M. 2011. The evolution and ideology of global constitutionalism. California Law
Review, 99 (forthcoming).
Levinson, S. 1995. Introduction: Imperfection and amendability, in Responding to Imperfection: The
Theory and Practice of Constitutional Amendment, edited by S. Levinson. Princeton, NJ: Princeton
University Press, 3–11.
Livingston, W.S. 1956. Federalism and Constitutional Change. Oxford: Clarendon Press.
Loewenstein, K. 1961. Über Wesen, Technik und Grenzen der Verfassungsänderung. Berlin: De Gruyter.
Lorenz, A. 2005. How to measure constitutional rigidity: Four concepts and two alternatives. Journal of
Theoretical Politics, 17, 341–363.
Lorenz, A. 2010. Verfassungsänderungen in föderalen und unitarischen Demokratien im Vergleich.
Befunde einer empirischen Analyse für den Zeitraum von 1945 bis 2004, in Föderalismusreform in
Deutschland, edited by J. von Blumenthal and S. Bröchler. Wiesbaden: VS-Verlag, 13–36.
Lorenz, A. 2011. Constitutional negotiations: Interests, interaction orientations and the prospect of
agreement, in Federalism and Constitutional Change: Theoretical and Comparative Perspectives,
edited by A. Benz and C. Colino. Special issue of Regional and Federal Studies (forthcoming).
Lorenz, A. and Seemann, W. 2009. Verfassungspolitische Konjunkturzyklen? Überlegungen zur
Wirkungsweise konstitutioneller Rigidität, in Jahrbuch für Handlungs- und Entscheidungstheorie, Vol.
5, edited by T. Bräuninger, J. Behnke and S. Shikano. Wiesbaden: VS Verlag für Sozialwissenschaften,
55–86.
49
Lutz, D.S. 1994. Toward a theory of constitutional amendment. American Political Science Review, 88,
355–370.
Maddex, R.L. 1996. Constitutions of the World. London: Routledge.
Manfredi, C.P. 1997. Institutional design and the politics of constitutional modification: Understanding
amendment failure in the United States and Canada. Law and Society Review, 31, 111–136.
Negretto, G.L. 2009. Political parties and institutional design: Explaining constitutional choice in Latin
America. British Journal of Political Science, 39, 117–139.
North, D.C. 1990. Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge
University Press.
Offe, C. and Preuss, U.K. 1991. Democracy and moral resources, in Political Theory Today, edited by D.
Held. Cambridge: Polity Press and Stanford University Press, 143–171.
Pierson, P. 2000. The limits of design: Explaining institutional origins and change. Governance, 13, 475–
499.
Rasch, B.E. and Congleton, R.D. 2006. Constitutional amendment procedures and constitutional stability,
in Democratic Constitutional Design and Public Policy: Analysis and Evidence, edited by R.D.
Congleton and B. Swedenborg. Cambridge, MA and London: MIT Press, 319–342.
Riker, W.H. 1964. Federalism: Origins, Operation, Significance. Boston, MA and Toronto: Little Brown &
Co.
Roberts, A. 2008. The politics of constitutional amendment in postcommunist Europe. Constitutional
Political Economy, 20, 99–117.
Roesler, S. 2007. Permutations of judicial power: The new constitutionalism and the expansion of judicial
authority, Law and Social Inquiry, 32, 545–579.
Rosenfeld, M. (2001). The rule of law and the legitimacy of constitutional democracy. Southern California
Law Review, 74, 1307–1351.
Rueschemeyer, D. and Stephens, J.D. 1997. Comparing historical sequences: A powerful tool for causal
analysis. Comparative Social Research, 16, 55–72.
Sartori, G. 1994. Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and
Outcomes. London: Macmillan.
Scharpf, F.W. 1988. The joint decision trap: Lessons from German federalism and European integration.
Public Administration, 66, 239–278.
Scharpf, F.W. 1997. Games Real Actors Play: Actor-Centred Institutionalism in Policy Research. Boulder,
CO and Oxford: Westview Press.
Scharpf, F.W. 2003. Problem-Solving Effectiveness and Democratic Accountability in the EU. MPIfG
Working Paper 03/1. [Online]. Available at: http://www.mpifg.de/pu/workpap/wp03-1/wp03-1.html.
Scharpf, F.W. 2009. Föderalismusreform. Kein Ausweg aus der Politikverflechtungsfalle? Frankfurt am
Main: Campus-Verlag.
Schönlau, J. 2003. Time was of the essence: Timing and framing Europe’s constitutional convention, in
Deliberative Constitutional Politics in the EU, edited by C. Closa and J.E. Fossum. Oslo: Arena, 245–
272.
50
Schultze, R.-O. 2000. Constitutional reform as process, in The Politics of Constitutional Reform in North
America: Coping with New Challenges, edited by R.-O. Schulze and R. Sturm. Opladen: Leske and
Budrich, 11–31.
Sejersted, F. 1993. Democracy and the rule of law: Some historical experiences of contradictions in the
striving for good government, in Constitutionalism and Democracy, edited by J. Elster and R. Slagstad.
Cambridge: Cambridge University Press and Universitetsforlaget, 131–152.
Slaughter, A.-M. and Burke-White, W. 2002. An international constitutional moment. Harvard
International Law Journal, 43, 1–21.
Smith, E. 2003. Constitutional cultures: The constitution between politics and law, in The Constitution as
an Instrument of Change, edited by E. Smith. SNS Förlag, 19–25.
Spiliotopoulos, E. 1995. Grèce: révision de la constitution et justice constitutionelle. Annuaire International
de Justice Constitutionelle, X-1994, 119–133.
Thelen, K. 1999. Historical institutionalism in comparative politics. Annual Review of Political Science, 2,
369–404.
Thelen, K. 2003. How institutions evolve: Insights from comparative historical analysis, in Comparative
Historical Analysis in the Social Sciences, edited by J. Mahoney and D. Rueschemeyer. Cambridge:
Cambridge University Press, 208–240.
Venizelos, E. 1999. The consensual and corroborative revision of the Hellenic constitution. Jahrbuch des
Öffentlichen Rechts der Gegenwart, 47, 99–108.
Voigt, S. 1999. Explaining Constitutional Change: A Positive Economics Approach. Cheltenham: Elgar.
Vorländer, H. 2002. Integration durch Verfassung? Die symbolische Bedeutung der Verfassung im
politischen Integrationsprozess, in Integration durch Verfassung, edited by H. Vorländer. Wiesbaden:
Westdeutscher Verlag, 9–40.
Voßkuhle, A. 2004. Gibt es und wozu nutzt eine Lehre vom Verfassungswandel? Der Staat, 43, 450–459.
Wagner, W. 1999. Interessen und Ideen in der europäischen Verfassungspolitik. Rationalistische und
konstruktivistische Erklärungen mitgliedstaatlicher Präferenzen. Politische Vierteljahresschrift, 40,
415–441.
Weaver, R.K. 2000. The politics of institutional reform in the United States and Canada, in The Politics of
Constitutional Reform in North-America: Coping with New Challenges, edited by R.-O. Schultze and
R. Sturm. Opladen: Leske and Budrich, 47–81.
Weiler, J.H.H. and Wind, M. (eds) 2003. European Constitutionalism beyond the State. Cambridge:
Cambridge University Press.
Wiener, A. 2008. The Invisible Constitution of Politics: Contested Norms and International Encounters.
Cambridge: Cambridge University Press.